EB-1 Green Card

EB-1 Green Card

The EB-1 green card is one of the fastest methods for obtaining the U.S. permanent residency among all the employment-based options. The EB-1 is the first-preference employment-based green card category. Annually, a total of 140,000 applicants receive green cards under the employment-based rank and each country is only capable of collecting 7% (9,800) of the 140,000 cap.

There are five different employment-based (EB) categories. The first is EB-1 which is classified for individuals that are “priority workers,” granting them first preference in acquiring a green card. The EB-1 Green Card is premised around extraordinary skills regarding the participant’s occupation. Within the EB-1 category, there are three different subcategories of priority workers that will qualify.

  • Extraordinary Ability (EA)
    • An evident of superior abilities in the field of science, art, education, business, or athletics. Must be able to provide relevant proof of recognition.
  • Outstanding Professor and Researcher (OPR)
    • Intended for highly-acknowledged scholars or scientists.
  • Multinational Executives and Managers (MEM)
    • Executives or managers of multinational companies who are starting a new office/business in the United States. The other option is being an executive or manager who is being transferred to the United States by a reputable international company.

The EB-1 is a highly popular option because it does not require a PERM Labor Certification. The Labor Certification is typically an extensive and costly filing process in order to determine if the requirements of the available position are able to be filled by a U.S. worker. When the Labor Certification is required the applicant risks being rejected which can constraint the applicant’s time and expenses.

For the EA category, a permanent job offer is not required. This means that the applicant has the ability to apply for the petition on his/her own behalf. However, the OPR and MEM categories do require a permanent job offer. The U.S. employer is the only one who can file the petition for the applicant.

Another advantage in obtaining an EB-1 Green Card is that the category is usually always current. This means that the applicant does not have to wait an extended period of time before the application is reviewed and can receive a Department of State (DOS) immigrant visa number. This puts the applicant on a faster track to file an adjustment of status and initialize the green card process.

Retaining EB-1 green card lawyers with experience and knowledge of the process is absolutely necessary when handling such important visa matters.

EB-1 Green Card Application Process

Here’s a brief summary of the application process for each subcategory within the EB-1 visa category:

  • Extraordinary Ability: Individuals may petition for themselves by filing Form I-140, Petition for Alien Worker. The EA category does not require a PERM Labor Certification or a job offer from a U.S. employer which is why it’s one of the fastest methods out there.
  • Outstanding Professors and Researchers: Must be filed by an employer Form I-140, Petition for Alien Worker. While the OPR category does not require a PERM Labor Certification it does require a permanent job offer from a U.S. employer, unlike the self-petitioned EB-1A cases.
  • Multinational Manager or Executive: Must be filed by an employer Form I-140, Petition for Alien Worker. It’s important to note that the manager or executive must have been employed outside the United States with the related foreign company for 1 year in the preceding 3 years. The employment must have been in a managerial or executive capacity.

EB-1 Processing Time

The first thing to know about the processing time for any visa is that there are often several factors that cause it to vary widely. The first is the caseload of the service center that is processing your petition—the busier the center, the longer it will take to process. The second factor is the complexity of your case. If the USCIS issues an RFE or a NOID, it will cause delays in your processing. Thirdly, you will need to factor in your priority date and how long it will take to become current, which varies based on your country of origin. Fortunately, unlike the other employment-based green cards, you do not have to add the PERM processing time into your overall timeline.

I-140 Processing Time

The first step to getting an EB-1 is filing an I-140 petition with the USCIS. This is the step that is the most susceptible to delays based on the first two factors mentioned above. The service center’s caseload and the complexity of your case will influence how long it takes to process the petition. On average, however, it takes about six months to process.

If a six month average is too long for you, you can opt to pay an extra fee for premium processing, which will expedite your petition’s processing time down to just 15 calendar days. This does not increase your chances of getting approved and it is not available for the EB-1C.

The I-140 can also be delayed depending on this next aspect of the EB-1 processing time, the status of your priority date.

Priority Dates

Your EB-1 green card priority date is the day that the USCIS obtains your I-140. You will need to check the Department of State’s monthly visa bulletin for the latest posted final action dates, which are separated according to the beneficiary’s country of origin. Once the final action date for your country matches or passes your EB-1 priority date, your priority date will be considered current and you can move onto the last phase.

It is important to note that the time it takes for priority dates to become current can sometimes be as long as several years for some countries. The more people that apply for the EB-1 from your country, the longer it will take. Even if you use premium processing to expedite your petition, you will still need to wait for your priority date to be current before moving forward. In many cases, the date will automatically be current (denoted by a “C” on the visa bulletin). This means that you can move on as soon as your I-140 is approved.

Adjustment of Status vs Consular Processing

This last phase of your EB-1 processing time will depend on which option you choose between adjustment of status and consular processing.

Adjustment of status involves filing an I-485 application to have your status “adjusted” from nonimmigrant to immigrant status. For this reason, you must have a valid nonimmigrant status at the time of your I-140 approval (such as an H-1B or O-1 visa) and you must be in the U.S. The I-485 takes about six months to process and premium processing is not available.

Consular processing is available for those with a valid nonimmigrant visa status and is mandatory for those that do not have a nonimmigrant status. You must make an appointment with the U.S. Consulate or Embassy in your home country, which may be scheduled out several weeks or several months in advance depending on how busy the consulate is. Once there, you will take part in a one-on-one interview with a consular officer to determine whether or not your case merits an EB-1 green card. Consular processing has the potential to take less time than the I-485, and so can be an attractive option for those who are pressed for time.

How Much Does the EB-1 Cost?

Here is a breakdown of the basic mandatory fees you will encounter while pursuing an EB-1 green card:

  • $700 I-140 basic filing fee. If an employer is filing on your behalf, they will be responsible for this fee.
  • $750-$1225 fee for the I-485 application. This cost varies depending on your age, with the lower costs going to children and the elderly. Remember that this is only applicable if you are adjusting your status.
  • $85 biometrics fee
  • $230 DS-260 application fee. This is only applicable if you are using consular processing.
    • $88 fee for the Affidavit of Support, which is required along with a DS-260 application.

You should also factor other costs into your EB-1 process such as traveling costs and attorney fees. You can see our flat rate for employment-based green cards on our fees page.

What Happens if My EB-1 Is Denied?

After all of the time, money, and work put into an EB-1, getting a rejection or denial can be devastating. If you are looking to avoid this scenario or you have already received a rejection or denial notice, then the following information is for you.

Rejection vs Denial

Firstly, we need to make a distinction between the terms “rejection” and “denial”. In everyday speech, these terms are synonymous. However, in the language of immigration law, they have different meanings.

Each EB-1 petition is adjudicated using a two-pronged approach. In the first phase, an evaluating officer will check to see if:

  • All required information and documents are present with the petition
  • All of the information is accurate and consistent
  • The fees are adequate and properly filed

If your petition does not pass this stage, then it will likely be rejected. Fixing the error or omission and refiling is often the best thing to do in these cases. However, you will be responsible for new fees.

If your petition passes the first stage, then the evaluating officer will review the evidence and assess whether or not you and your employer (if applicable) merit an EB-1 green card. If not, then you may expect to see a denial notice. In these cases, refiling often isn’t the best option. Instead, you may want to talk to your attorney about filing a legal motion or going through the appeals process.

Legal Motions

Filing a legal motion is essentially like appealing to the evaluating officer that processed your petition. There are two kinds of motions that can be filed:

Motion to Reopen: If you can present more evidence that was not submitted with the previous petition, and if that evidence would likely have a significant impact on the decision to deny your EB-1 petition, then you might be able to file a motion to reopen. However, this is only if new evidence has come to light.

Motion to Reconsider: If you believe that the evaluating officer was incorrect in his or her decision from a legal standpoint, then you might be able to go with a motion to reconsider for your case. This, like all motions and appeals, should not be done without the help of an experienced immigration attorney.

Appealing

Lastly, you can also bring your case to a third party to appeal the decision. In immigration law, that third party will be the Administrative Appeals Office, which has a track record of upholding the decisions of the evaluating officers.

Requests for Evidence

If an evaluating officer is reviewing your case and notices that some extra documentation would bolster your candidacy for an EB-1, he or she may issue a Request for Evidence (RFE). These can range for simple requests for missing documents such as birth certificates or passports to requests for more complicated things such as proof that you work in a managerial capacity for an EB-1C or proof of your achievements for an EB-1A.

If you do get an RFE, the first thing you should do is take it to your attorney so that you can file a satisfactory and timely response. There are three kinds of ways to respond to an RFE for your EB-1 green card: a full response where you give all of the evidence requested, a partial response where you only give some of the evidence requested (either by choice or because the evidence is not available), and a withdrawal of your petition.

How Our EB-1 Green Card Lawyers Can Help

  • Our EB-1 green card lawyers are knowledgeable in determining which category you best qualify based on your previous accomplishments and experience.
  • Our EB-1 green card lawyers will advise you on and thoroughly examine the supplementary documentation required for your application to give you the best chance at acquiring the EB-1 green card.
  • If you are still unsure about whether you would like to obtain an EB-1, L-1A, or NIW our immigration lawyers are capable of assisting you in your decision.
  • If the EB-1 green card holder would like to bring his/her spouse and children to the United States, we are experienced in the process to obtain status for them as well.

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